As we usher in 2022, we are once again simultaneously ushering in a broad slate of new laws in California that will bring significant change and reform to the criminal justice system. Some of these will probably warrant their own posts at some point, but for now, I am just going to highlight and summarize some of the most major changes happening.
SB 567 requires that any factor a court relies on to impose an aggravated sentence (also known as “upper term”) must be proved beyond a reasonable doubt to a jury. Moreover, the trial on such aggravating factors must be bifurcated, or separated, from the trial on the primary charges.
I predict most prosecutors will rarely go to this trouble and we will generally see “mid-term” being imposed after trial, which will also impact pre-trial offers (as a defendant’s potential exposure after the trial is now likely to be lower).
The bill also requires selection of the lower term in most cases where mitigating “contributing factors” are found such as childhood trauma, the defendant was a youth (under 26) at the time of the crime, etc…
AB 124 now requires prosecutors to consider the childhood trauma of a defendant during plea negotiations.
Previously, when someone was charged with a probation violation, most courts would not set bail. AB 1228 now requires courts to consider release for probation, parole, and AB109 violations and, in fact, requires release on one’s own recognizance unless the court finds by clear and convincing evidence that circumstances particular to the defendant require incarceration or the setting of bail. These factors can include protection of the public or assuring future appearances of the defendant.t
Jury selection reform:
Getting rid of a juror during jury selection on the basis of race, gender, sexual orientation, ethnicity, or religious affiliation is not allowed, but AB 3070 now puts some real teeth into the prohibition. When one side challenges the other’s removal or a juror on the grounds that the other side based the removal on an improper ground, the court must hear the justification for the removal. Previously, the court was only required to take action if it found that the removal of the juror was actually based on an improper reason. Now, it must take action if it finds that an objectively reasonable person would view one of the above protected classes as being a factor in the removal of a juror. In other words, the judge no longer has to call the prosecutor a racist, but only find that someone could see it that way.
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